Mohan Chand vs State Of Uttarakhand

Mohan Chand ...Appellant

Versus

State of Uttarakhand ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of Uttarakhand at Nainital High Court finding the appellant guilty of

offence punishable under Section 376 of the Indian Penal Code, 1860 (in

short the `IPC') and sentencing him to undergo rigorous imprisonment for seven years. Two persons i.e. Khemanand and the present appellant filed the

appeal before the High Court which was dismissed by the impugned

judgment.

3. Background facts in a nutshell are as follows:

On 6.2.1985 the prosecutrix was sent by her mother to purchase rice

from cheap grain shop. The prosecutrix waited there for sometimes in front

of the shop. Ultimately, the prosecutrix returned to her home without

purchasing rice. When her mother saw her without rice and coming late at

home, she scolded and admonished her. The prosecutrix was again sent to

the cheap grain shop and she again found it closed. When the prosecutrix

was in a sad and remorseful mood, the accused Basant Ballabh (who died

during the pendency of appeal) who was known to the prosecutrix came

over there and inquired from her the reason for her remorse. The accused

Basant Ballabh started to console her by saying that her mother was

admonishing her everyday and suggested that they should run away and

marry at Purnagiri temple. The accused, Basant Ballabh also told her that

his maternal uncle has a factory where he would get an employment and

earn money and live comfortably. The accused Basant Ballabh took the

2 prosecutrix to his room where they stayed throughout the night. The accused

Basant Ballabh promised her to marry on the next day in Purnagiri Temple.

During the intervening night of 6th/7th February, 1985, accused Basant

Ballabh committed rape on the prosecutrix thrice in the night. On the next

day, the prosecutrix along with accused Basant Ballabh proceeded to the

bus station Champawat The accused Basant Ballabh asked the prosecutrix

to go on foot 1 k.m. ahead from Champawat towards Tanakpur side and

wait for him near the Deodar tree from where he would pick her up in the

bus. Following the said instructions, the prosecutrix proceeded towards the

Deodar tree on foot which is ahead of Champawat, from where she was

taken in the bus by the accused Basant Ballahh and Trilok Singh (who

turned Approver) who had also joined hands with accused Basant Ballabh.

They all proceeded towards Tanakpur and got down little before Tanakpur

from where they proceeded on foot and reached on Tanakpur-Bareilly road.

They again boarded a bus going towards the side of Bareilly. The

prosecutrix became anxious and inquired as to where they were going. In

reply, the accused told her that they would first purchase the articles

required to perform marriage from Pilibhit and then would go to the temple.

When they reached at Pilibhit, the prosecutrix was taken to a liquor shop

where the accused Khemanand used to work as a Salesman. The accused

3 Khemanand was also having an accommodation there. The accused Basant

Ballabh, Trilok Singh and Khemanand took the prosecutrix inside the room

of accused Khemanand where the accused persons consumed liquor. After

finishing the drinks, Trilok Singh and Basant Ballabh slept on one cot,

while Khemanand and the prosecutrix took separate cots. After sometimes,

accused Khemanand went upto the cot of the prosecutrix and tried to molest

her. The prosecutrix resisted his attempts and complained against accused

Khemanand to Basant Ballabh. Accused Basant Ballabh instead of helping

her, asked her to fulfill the desire of the accused Khemanand. Accused

Khemanand subjected the prosecutrix to sexual intercourse forcibly. On

9.2.1985 the prosecutrix was taken to village Tikri where distantly related

sister of Trilok Singh was residing so that they may not be apprehended by

the police. Accused Triok Singh and Basant Ballabh went outside the

village to ascertain whether any report against them has been made or not.

They came to know that a report has been lodged in the police station. The

accused brought the prosecutrix from village Tikri to Tanakpur. At Pilibhit,

accused Basant Ballabh got down and asked Trilok Singh to send the

prosecutrix to Champawat. Trilok Singh brought the prosecutrix to

Tanakpur. Thereafter, accused Trilok Singh found truck No.USZ-4480 with

its driver accused Mohan Chand near a pump at Tanakpur. Accused Trilok

4 Singh told accused Mohan Chand that the prosecutrix was a student of class

IX and her school is to open the next day, therefore, she may be taken in the

truck. Accused Trilok Singh also paid fare and instructed accused Mohan

Chand that the prosecutrix be made to get down 1 k.m. before Champawat.

Thereafter accused Mohan Chand also committed rape upon her. When the

truck moved a little forward, it stopped and an unknown person who was

sitting by the side of the driver also went to the prosecutrix and committed

rape upon the prosecutrix. Accused Mohan Chand made the prosecutrix to

get down 1 k.m. before Champawat. She covered the distance on foot and

went straight to the house of accused Basant Ballabh. A written report

Ex.Ka.7 was lodged by Girish Chandra Paneru on 07.02.1985 before the

Patti Patwari Talla Charao alleging therein that his niece, i.e. the prosecutrix

is not traceable since 06.02.1985 and that he has gathered the information

that the accused Basant Ballabh has taken her away from Champawat

towards Tanakpur. On the basis of FIR, the Chick FIR Ex.Ka.8 was

prepared. Patti Patwari Devi Datt (PW7) investigated the case. He recorded

the statement of the prosecutrix under Section 161 of the Code of Criminal

Procedure, 1973 (in short the `Code') on 10.02.1985. During the course of

investigation, the prosecutrix gave a written report Ex.Ka.3 and disclosed

that she has been raped by the accused persons. The Investigating Officer

5 sent the prosecutrix for medical examination in order to ascertain her age

and whether she was subjected to sexual intercourse or not. The

investigating officer after completing the necessary formalities of the

investigation submitted the charge sheet Ex.Ka.13 before the Court.

After completion of investigation charge sheet was filed and since the

accused persons pleaded innocence trial was held. Prem Lata Tiwari (PW-2)

was the principal of the school where the prosecutrix was studying. PW-4

was the prosecutrix. Trilok Singh (PW-5) was the accused but later on was

made an approver. The trial Court found the evidence to be sufficient and

convicted the accused persons.

In appeal, the basic stand taken was that at the first instance the name

of the appellant was not stated and, therefore, there was false implication

and the conviction should not have been recorded as the evidence is not

sufficient to establish the accusations. The High Court did not find any

substance in the plea and dismissed the appeal.

4. The stand taken before the High Court was reiterated by the appellant.

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5. Learned counsel for the State on the other hand supported the

judgment of the trial Court and the High Court.

6. It is to be noted that the prosecutrix did not know the name of the

accused and, therefore, there was necessity for Test Identification Parade.

The evidence of the prosecutrix is clear and cogent. In the instant case the

accused is not personally known to the victim and therefore stating his name

in the FIR did not arise. However, she has categorically stated that the rape

was committed on her by the truck driver. After the arrest of the accused he

was put in TI Parade and the victim had correctly identified him. That being

so, the judgments of the trial Court and the High Court do not suffer from

any infirmity to warrant interference.

7. The appeal is dismissed.

....................................J. (Dr. ARIJIT PASAYAT)

.....................................J. (ASOK KUMAR GANGULY) New Delhi, January 23, 2009

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